[2011] FWA 7583

Download Word Document



Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Moshiur Rahman
Storm International Pty Ltd T/A Storm International Property Maintenance



Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by United Voice on behalf of Moshiur Rahman (the applicant). The respondent employer is Storm International Pty Ltd (the employer).

[2] This Decision is confined to the discrete question as to whether Fair Work Australia (FWA) should grant permission for the employer to be represented by a lawyer. On 26 October 2011, United Voice formerly raised objection to the employer being represented by a lawyer. This objection was advanced on the basis that FWA should refuse permission for the employer to be represented by a lawyer because the relevant provisions of section 596 of the Act operated so as to provide proper basis for such refusal.

[3] The application has been listed for substantive Hearing on 7 November 2011. In view of the objection regarding representation made by United Voice and other procedural issues, that matter was the subject of Mention and Direction proceedings held on 1 November 2011. On 1 November Ms G Potter Butler from United Voice appeared for the applicant and Mr J Pearce barrister, appeared on behalf of the employer.

[4] During these proceedings an agreed program was developed so as to permit each party to provide material upon which FWA would determine the question of legal representation. That program culminated with the provision of final submissions in response from United Voice submitted on the evening of 3 November 2011. Consequently I have carefully examined and considered the respective submissions of the parties as the basis for this Decision.

[5] The question of representation in proceedings before FWA is governed by section 596 of the Act which is in the following terms:

“596 Representation by lawyers and paid agents

[6] The first aspect of these provisions which should be acknowledged is that they represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of decisions of FWA which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before FWA as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and more recently the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520 (Lekos).

[7] Secondly, there appears to be three, and only three, criteria which separately or in combination, provide basis upon which FWA can grant permission for a lawyer or paid agent to represent a party in proceedings such as an unfair dismissal matter. These three criteria which can be extracted from paragraphs (a), (b) and (c) of subsection (2) of s.596 of the Act, and can be paraphrased as; complexity; inability; and fairness.

[8] In summary, in this case the employer argued that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. Alternatively, United Voice rejected the complexity attributed to the matter by those representing the employer. Further, United Voice asserted that the alleged complexity was a manifestation created by the employer in respect of matters that were not necessarily relevant to the determination of the application.

[9] The employer did not strongly advance argument that it was unable to represent itself or that it was a small business without specialist human resources staff or other means to provide basic advocacy for its position.

[10] On the question of fairness the employer noted that the applicant was represented by United Voice and that the employed advocate from that organisation was legally qualified. The employer stressed that the applicant was represented by a legally qualified person and or Mr Vance who was “... an extremely experienced and capable union advocate who has appeared often in State and Federal industrial tribunals over many years and is well respected for his ability to marshall[sic] complex factual arguments and deal with difficult legal arguments.” By inference, the employer had no human resource or other managerial employee with a similar level of skill or experience.


[11] In respect of the issue of complexity, there appears to be considerable support for the proposition advanced by United Voice that the complexity associated with the matter is more a creation of the employer than anything arising in respect of the circumstances of the dismissal of the applicant. The major areas of complexity have been introduced in the employer’s amended outline of submissions and relate to potential breaches of the “Migration Act” and an apparent failure to meet obligations in respect of taxation. Neither the immigration nor the taxation issues are mentioned in the letter of dismissal. The evidence regarding the employer’s reason for dismissal appears to be confined to an alleged security breach and associated matters involving unauthorised possession of security identification documents.

[12] In addition it is relevant to note that the employer has alleged that the application is frivolous, vexatious and has no reasonable prospects of success. There is to some extent, something of an incongruity to argue on the one hand that the matter could be summarily dismissed and yet on the other hand it is of sufficient complexity to justify permission for legal representation.

[13] Consequently I am not convinced that the matter is genuinely of sufficient complexity as to be assisted by legal representatives.

[14] The inability criterion has not been strongly advanced in this instance.

[15] The issue of fairness between the person and other persons in the matter has significance. It is important to recognise that from the outset both parties have been represented, the applicant by United Voice, and the employer by lawyers. This position is starkly in contrast with the circumstances in the Lekos case.

[16] The employer is a medium-size business with approximately 65 employees and some specialist human resources staff. There was no evidence that the employer retained any employee with skill and experience as an industrial advocate. Consequently if permission for legal representation for the employer was refused something of an imbalance would emerge whereby the applicant would be represented by the legally qualified, skilled and experienced advocate(s) from United Voice while the employer would need to rely upon an unqualified and presumably inexperienced human resources or other manager.

[17] In these circumstances I consider that unfairness would result from the imbalance created by what, at least in perception, would be the more advantageous representation of the applicant as opposed to that to which the employer had been restricted. Consequently I believe that the criterion contained in paragraph (c) of subsection 596 (2) of the Act has been established and therefore I grant permission for the employer to be represented by a lawyer or paid agent.


Printed by authority of the Commonwealth Government Printer

<Price code A, PR516383>